It appears that subsequently a question arose in respect to the compensation that had been allowed McIntyre, who had procured leave of absence without pay, on account of the illness of his wife, and who, subsequently being directed by the Secretary of the Interior to perform a certain service, announced, on the 16th day of May, 1902, his inability to comply with the order. The work that McIntyre was so directed to perform was performed by some one else, and thereafter he was not assigned to any further duty and performed no further service.

We are not called upon in this case to decide whether or not it was rightly held that McIntyre was not entitled to compensation after May 16, 1902. In the case of Hoyt there does not appear to have been any leave of absence, conditioned without pay, nor was there, any refusal on his part to perform any service required of him; but, on the contrary, according to the record, he remained away from his home, and in the field of operations to which he was sent, ready and willing at any time to perform any duty required of him as such commissioner and disbursing agent, and regularly reporting such services as he did perform. And the question here for decision is whether he was therefore entitled to the $8 a day, that he was allowed and paid, from the time he entered upon the discharge of his duties until July 30, 1902, when his services were dispensed with.

We think the court below rightly held that he was. The case does not wholly depend upon the single clause in the general instructions of July 6, 1900, reading as follows:

"You will be allowed compensation at the rate of eight dollars ($8.00) per day while actually engaged in the performance of your duties"

The

-with the word "actually" therein construed as "actively." rights of the parties must be determined in view of the appointments of Hoyt as commissioner and as disbursing agent, and in view of the letter of the Secretary inclosing his commission, as well as the letter of general instructions of July 6, 1900. Looking only at the latter, we find immediately following the clause above quoted, and upon which so much reliance is placed by the plaintiff in error, the statement to the commissioners:

"Your salaries will begin on the date of taking the oath of office and entering upon the discharge of your duties."

We think such must have been the reasonable understanding of the appointees, as well as of the appointing officer. In the case of Hoyt -the only one before us-it appears that he promptly took the oath of office and thereupon went into the field of operations to which he was assigned, and remained there, away from his home, performing such duties as he was directed to perform, and was at all times willing and ready to do so. We can see no just or legal ground upon which to take from him compensation therefor, from the time of his entry upon his duties until his services were dispensed with, at the rate fixed by the Secretary. This conclusion is in accord with the action of that officer in the case of Commissioner McNeely, where the Acting Secretary ruled, in his letter of June 3, 1902, as follows:

167 F.-20

"Although Commissioner McNeely left Muskogee for Evansville, Indiana, on March 8th, his voucher is allowed in full for the whole quarter, it appearing that he was sick, and died at his home April 6th, last."

The judgment is affirmed.

UNITED STATES v. LOUISVILLE & N. R. CO.

(Circuit Court of Appeals, Sixth Circuit. February 18, 1909.)

No. 1,796.

1. PENALTIES (8 40*)-SAFETY APPLIANCE ACT-ACTION-REVIEW.

An action by the United States against a railroad company to recover the penalty for violation of the safety appliance act of March 2, 1893, c. 196, 27 Stat. 532 (U. S. Comp. St. 1901, p. 3174), is a civil action, and the judgment therein is reviewable at the instance of the United States on writ of error.

[Ed. Note. For other cases, see Penalties, Dec. Dig. § 40.*]

2. COURTS (8 405*)-DISTRICT COURT OF THE UNITED STATES-PROCEDURE— TRIAL WITHOUT JURY.

There is no authority either at common law or by statute under which the facts in an action at law may be tried by the judge of a District Court of the United States without a jury, and where a case is so tried by stipulation the judgment is not reviewable by the Circuit Court of Appeals.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 405.*]

In Error to the District Court of the United States for the Western District of Kentucky.

For opinion below, see 156 Fed. 195.

George Du Relle, for plaintiff in error.

T. K. Helm, for defendant in error.

Before SEVERENS, Circuit Judge, and KNAPPEN and SANFORD, District Judges.

SEVERENS, Circuit Judge. This is an action of debt brought by the United States in the District Court against the Louisville & Nashville Railroad Company to recover a penalty of $100 for the alleged violation of section 6 of the "Safety Appliance Act" of March 2, 1893 (Act March 2, 1893, c. 196, 27 Stat. 532, as amended by Act April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175]). The cause of action stated in the petition is that the defendant "hauled a car with interstate traffic over its line of railroad in and about Louisville, in the state of Kentucky, within the jurisdiction of this court, when the coupling and uncoupling apparatus on the 'B' end of said car was out of repair and inoperative, the chain connecting the lock pin or lock block to the uncoupling lever being broken on said end of said car, thus necessitating a man or men going between the ends of the cars to couple or uncouple them, and when said car was not equipped with couplers coupling automatically by impact and which could be uncoupled without the necessity of a man or men going between the ends of the cars, as required by section 2 of the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

safety appliance act, as amended by section 1 of the act of March 2, 1903." The defendant pleaded not guilty, and, further answering, made other averments, most of which were stricken out on motion of the district attorney, apparently because supposed irrelevant. Thereupon the attorneys for the parties made and filed a stipulation in writing, as follows:

"It is hereby stipulated that the law and facts of this case may be submitted to the court without the intervention of a jury, and a jury is hereby waived."

The case came on for trial and was heard. The record states that the court "delivered an opinion in writing, which is filed, and pursuant and upon consideration of the testimony heard in this cause, it is found, considered, and adjudged by the court that the defendant, the Louisville & Nashville Railroad Company, is not guilty of the charge and violation of law alleged against it in the plaintiff's petition, and said petition is dismissed for that reason"; and that the court declined to make a special finding of facts. A bill of exceptions was tendered and settled; and from this it appears that upon the trial it was

"stipulated and agreed by the parties hereto that the facts in this case are as follows:

"Interstate Commerce Commission Inspectors Belknap and Coutts, on March 26, 1907, at Louisville, Kentucky, at 7:55 a. m., inspected C. & O. coal car No. 26,285, on track 13 Water-street yard of the defendant at which time the chain connecting the lock pin or lock block to the uncoupling lever was broken on the 'B' end of the car; to operate this coupler required a man to go between the cars.

"It was inspected and marked by the railroad inspector 'loose lift chain 3-26.'

"Engine 313 of the defendant was used to haul this in this condition to the siding of the Ewald Iron Company at 10:30 a. m., same date.

"This car contained pig iron consigned from the Kelly Nail & Iron Company, Ironton, Ohio, to Ewald Iron Company, Louisville, Kentucky.

"The defendant is a corporation organized and doing business under the laws of the state of Kentucky, and is a common carrier engaged in interstate commerce by railroad.

"It is further stipulated that witnesses for the defense will testify as follows:"

Here follows the testimony of several witnesses by question and answer concerning facts incident to the location of tracks, the inspection of the cars including this one, the time when the defect was discovered, and the measures taken for remedying it.

The plaintiff having brought the case here by a writ of error, the defendant moved to dismiss it upon the grounds:

"(1) That the proceeding is criminal, and the judgment of the District Court is not subject to review.

"(2) That as the District Court tried the case on the facts, without the intervention of a jury, its finding is not subject to review."

The first of these is the only one which can be considered upon the motion to dismiss. The second is presented upon the consideration of the errors assigned, if the writ be not dismissed. Upon the question whether the judgment of the court below is subject to review, we think it is sufficient to refer to the opinion and decision of

this court in the case of United States v. Baltimore & Ohio Southwestern Railway Company, 159 Fed. 33, 86 C. C. A. 223, and especially to what we said at pages 38 and 39 of 159 Fed., page 228 of 86 C. C. A., on petition for rehearing. It being a civil action and not a criminal proceeding, the party complaining of the judgment was entitled to remove the case to this court, as it has done. If, indeed, the violation of this act were a criminal offense, the trial by the judge was a void proceeding, for the Constitution of the United States declares that all such cases shall be tried by a jury. Moreover, the highly important consequence would follow that the government would be concluded by the trial in the District Court. The court has jurisdiction of the process and of the parties and of the subject-matter; that is, of the subject to which the alleged errors relate. The motion to dismiss is therefore overruled.

The difficulty arises when we come to consider the errors assigned. It is found in the facts exhibited by the bill of exceptions. It was competent for the parties, if they saw fit, to waive a jury trial and accept the finding of the court upon the facts, as well as upon the questions of law involved, for if the finding of facts should be general, as it might be, there would be nothing to show any ruling upon a question of law, as there would be in case of a jury trial and the party wished a ruling by the court upon such a question. But the essential fact here is that the parties instead, of trying the case by a method known to the common law or provided by statute, were content to submit it to the determination of one who must necessarily act as an arbitrator, to whose conclusions a writ of error would not lie, that remedy being only available to correct errors in judicial proceedings authorized by law. And there is no law under which the facts may, in a common-law case, be tried by the judge in a District Court. As was pointed out in the case of Rogers v. United States, 141 U. S. 548, 12 Sup. Ct. 91, 35 L. Ed. 853, while there is statutory authority for the trial of causes by the judge upon the law and the facts in the Circuit Court (section 649, Rev. St. [U. S. Comp. St. 1901, p. 525]), no such authority is given to the judge of the District Court in the trial of a civil action. On the contrary, it is expressly declared by section 566, Rev. St. (U. S. Comp. St. 1901, p. 461), that all issues of fact, with the exception of equity and admiralty causes, shall be tried by a jury. In that case there had been a trial by the judge of the District Court, a judgment, a bill of exceptions allowed, and a writ of error to the Circuit Court, where the judgment was affirmed. The case was thereupon taken to the Supreme Court, where, on looking into the record, the court discovered that the case had been tried by the District Judge upon a submission of the cause to him, sitting without a jury. It was thereupon held (as the ruling is condensed in the syllabus) that:

"(1) The Circuit Court could not properly consider any matter raised by the bill of exceptions, nor can this court do so, because the trial was not by a jury nor on an agreed statement of facts.

"(2) All that the Circuit Court could do was to affirm the judgment of the District Court, and all that this court can do is to affirm the judgment of the Circuit Court, as the latter court had jurisdiction and this court has it."

At that time, and until the passage of the act of March 3, 1891 (Act March 3, 1891, c. 517, 26 Stat. 826), creating the Circuit Courts of Appeals, the Circuit Court had appellate jurisdiction of civil suits brought in the District Court under section 633, Rev. St. This appellate jurisdiction was taken away by the operation of the repealing clause of the fourteenth section of the act of March 3, 1891, and the substitution of the Circuit Court of Appeals. But no change has been made in the method of procedure in the District Court or in the appellate jurisdiction, except in this transfer of the latter to the Circuit Court of Appeals. The result is that we have the very question which was determined in the case of Rogers v. United States. It is impossible to see that the mere change of the appellate jurisdiction from the Circuit Court to this court should affect the question we are considering. There has been no decision upon the point by the Supreme Court since the organization of the Circuit Court of Appeals, that we are aware of. But it was presented to the Circuit Court of Appeals for the Eighth Circuit in a recent case, United States v. Cleage, 161 Fed. 85, in which the court, upon a well-considered opinion by Judge Van Devanter, reached the same conclusion as that here indicated as our own.

Without considering any further question, we should affirm the judgment of the District Court, and it is so ordered.

G. HIRSCH'S SONS v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. February 16, 1909.)

No. 132 (4,776).

1. CUSTOMS DUTIES (8 26*)-CLASSIFICATION-METAL THREAD FABRICS-"ARTICLES."

The word "article," when used in a tariff law, should be given a broad, liberal meaning; and in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 179, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1644), relating to "laces, embroideries or other articles" of metal threads, the doctrine of ejusdem generis does not operate to exclude fabrics in the piece from classification as "articles" under that provision.

*

[Ed. Note.-For other cases, see Customs Duties, Cent. Dig. § 59; Dec. Dig. 26.*

For other definitions, see Words and Phrases, vol. 1, pp. 511-515.]

2. CUSTOMS DUTIES (8 26*) — SPECIFIC DESIGNATION "ARTICLES IN CHIEF VALUE OF METAL THREADS."

Fabrics in the piece, composed chiefly of metal thread, but in part of silk, are more specifically enumerated in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 179, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1644), as "articles * in chief value of * metal threads," than under Schedule L, par. 387, 30 Stat. 186 (U. S. Comp. St. 1901, p. 1669), as "woven fabrics in the piece, not specially provided for, weighing

not less than one and one-third ounces per square yard and not more than eight ounces per square yard, dyed in the thread or yarn, and

*

containing not more than thirty per centum in weight of silk,

if other than black."

[Ed. Note. For other cases, see Customs Duties, Cent. Dig. §§ 48-59; Dec. Dig. § 26.*]

"For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 1U. S. Comp. St. 1901, p. 547.